Lakewood Cell Tower Lawsuit Dismissed By County Supreme Court

Gavin Paterniti

Entertainment/Features Reporter

gpaterniti@post-journal.com

LAKEWOOD — A year-long saga regarding the village of Lakewood’s decision not to allow an out-of-state corporation to place a cell tower in the municipality, and the litigation that resulted in the fallout, has finally been concluded.

It was recently announced that the case brought before the Chautauqua County Supreme Court and the Hon. Frank Sedita was dismissed on Jan. 25, when Sedita resoundingly rejected the challenges by Up State Tower Co. to the village’s local laws as to where cell towers may be placed and the duty of the developer to pay for the village’s cost to review cell tower applications.

“This decision sends a clear message that small villages and towns are not powerless against companies that use litigation as a means to an end,” said Cara Birrittieri, Lakewood mayor. “We are not against cell towers in Lakewood, we are against being forced to put any structure up in an area where our previous village leaders have decided they don’t belong. All we ask is that, as a village, we are allowed to enforce our local laws and have the developers pay the costs the village incurred to review their applications.”

Birrittieri said cell tower applications are often difficult for small communities because of the technical nature of the applications, and the out-of-pocket costs associated with determining what is necessary.

The case began back in June 2016, when the village adopted a local law regulating the siting of cell towers in the village which was designed to limit commercial cell towers to parcels which would have minimum impacts on the community. This law also placed the responsibility for paying the cost for evaluating the necessity of the towers, and their proposed heights, on the telecommunication tower developers.

In December 2016, the village agreed to apply the law forward, and allowed Up State Tower, who already had a pending cell cower action, to prosecute its pending application under the pre-existent law. In February 2017, the Lakewood Zoning Board of Appeals determined that the requested variance to build a 180-foot tower in the village was not warranted.

With a vote of four-to-one against the variance, the ZBA cited several reasons for its decision. Among them was the prevailing opinion among many residents and officials that the structure would have an adverse aesthetic impact on the use of surrounding recreational lands, which are currently being used and further developed as baseball fields, nature trails and other recreational facilities.

In addition, the board found that Up State Tower and Blue Wireless — which had stated that the tower was necessary to fill a gap in its services — failed to show significant coverage gaps that are not covered by existing business relationships. Also, the ZBA said the companies had suggested the tower was necessary per license requirement, though the requisite license requirements had been met; refused to provide data at lower heights; and refused to consider a variety of requests, including a potential alternate site.

The matter was the subject of much debate and dissenting viewpoints during a public hearing held in February 2017. Several village residents had voiced various concerns over the placement and necessity of the tower, which appear to have been taken into account by the ZBA as per its decision, while the Lakewood Fire Department had argued that the tower would have served as a good source of income for the department — as it owns the land that the tower would have been placed on and a lease agreement would have been struck up.

“Many members of the ZBA spent countless hours reviewing volumes of documents that were important to the application,” Birrittieri said at the time. “This decision was not arrived at lightly, however, it was arrived at carefully. This board (of trustees) and the citizens of this village are fortunate to have such dedicated servants in this community.”

Up State Tower then resurrected its challenge of the local law, which would spread the cost of assessing the needs for cell towers back to the developers. Attorney Richard Stanton argued the case on behalf of the village.